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NATIONAL COUNCIL OF LA RAZA v. DEPARTMENT OF JUSTICE

September 24, 2004.

NATIONAL COUNCIL OF LA RAZA, et al. Plaintiffs,
v.
DEPARTMENT OF JUSTICE, Defendant.



The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

MEMORANDUM OPINION

Plaintiff advocacy organizations*fn1 brought this action under the Freedom of Information Act*fn2 ("FOIA" or the "Act") to compel the Department of Justice ("Department") to produce certain records relating to the Department's position on the authority of state and local police to enforce immigration laws. The Department asserts that the documents fall within 5 U.S.C. § 552(b)(5) ("Exemption 5"), which exempts from the Act's disclosure requirements "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." Specifically, the Department asserts that the requested documents are protected by the deliberative process privilege and the attorney-client privilege. The matter is before the Court on the Department's motion for summary judgment dismissing the complaint.

  Facts

  A. Background

  The facts are essentially undisputed. The plaintiffs made the FOIA requests that gave rise to this lawsuit after the Department of Justice seemingly changed its position on the authority of state and local police to enforce federal immigration laws. In 1996, the Department's Office of Legal Counsel ("OLC") issued a lengthy legal opinion concluding, among other things, that states have the authority to detain aliens in order to enforce the criminal provisions of the immigration laws but lack legal authority to detain aliens for the purpose of civil deportation proceedings.*fn3 The OLC is a component of the Department of Justice that renders legal advice to the Attorney General.*fn4 The Department says, and plaintiffs do not dispute, that the Department publishes only a small fraction of the OLC's opinions.*fn5 The 1996 opinion was published.*fn6

  In 2002, the Department of Justice announced a new policy pursuant to which the federal government would call upon state and local police to assist in the enforcement of immigration laws. On June 5, 2002, Attorney General John Ashcroft held a press conference to announce the National Security Entry-Exit Registration System ("NSEERS"), a program for tracking foreign visitors to the United States.*fn7 He explained that, as part of the system, aliens who violate registration requirements or visa terms will be entered into the National Crime Information Center ("NCIC"), a database regularly used by state and local police officers.*fn8 The Attorney General then stated:
"When federal, state and local law enforcement officers encounter an alien of national security concern who has been listed in the NCIC, this criminal information system, federal law permits them to arrest the individual and transfer the individual to the custody of the INS. The Justice Department's Office of Legal Counsel has concluded that this narrow, limited mission we are asking state and local police to undertake voluntarily . . . is within the inherent authority of the states."*fn9
  The OLC conclusion mentioned by the Attorney General is reflected in an April 2002 opinion of the OLC, which concluded that states have the authority to enforce civil provisions of the immigration laws.*fn10 The defendant says, and plaintiffs offer no direct evidence to refute, that the April 2002 opinion has not been circulated outside the Executive Branch.*fn11 According to the declaration of M. Edward Whelan III, the Principal Deputy Assistant Attorney General for the Office of Legal Counsel, the opinion and a related OLC memorandum issued in March 2002 "have been shared only with government officials and staff working on these issues and closely held by them in strict confidence."*fn12 Nonetheless, the Department referred to the OLC documents in a series of public statements.
  In March 2003, the Attorney General responded to a letter from one of the plaintiffs, which inquired into the authority of state and local law enforcement officers to arrest aliens who have violated civil provisions of the immigration laws. The Attorney General wrote, among other things:
"Let me first state clearly the policy of the Department on this issue. The Department's Office of Legal Counsel (OLC) previously opined that state and local law enforcement officials have inherent authority to make arrests for criminal immigration law violations generally. It has now additionally opined that they possess inherent authority to arrest individuals whose names have been entered into the [NCIC]. . . . Thus, when state and local law enforcement officers encounter an alien who poses special risks and has been listed in the NCIC database for violating the [Immigration and Nationality Act], they may arrest that individual and transfer him to the custody of the Immigration and Naturalization Service (INS). The policy and the authority are no broader than this. . . ."*fn13
  In May 2003, the Attorney General and one of his subordinates, the Acting Assistant Attorney General for Legislative Affairs, responded in similar terms*fn14 to inquiries from the Boston Police Department, a U.S. Representative, and the U.S. House of Representatives Committee on the Judiciary.*fn15 The letter to the Boston Police Department elaborated slightly on the extent of the states' authority in the area of civil immigration enforcement.*fn16
  In June 2003, Kris W. Kobach, Counsel to the Attorney General,*fn17 delivered remarks at a meeting of the FBI's Criminal Justice Information Services Advisory Policy Board. The meeting was attended by nearly 140 people, including state and local law-enforcement officials and representatives of private industry.*fn18 Kobach referred several times to an OLC opinion.*fn19 At the beginning of his presentation he described the opinion:
"What I'd like to do just to sort of summarize what I'm going to say is give you a very quick overview of the Office of Legal Counsel opinion. . . . I don't want to get too much into the legalese of this, but [OLC found that] there [is] no federal preemption of state and local assistance for civil violations of the Act versus criminal violations of the Act. In addition, there were several Circuit court opinions in the 10th US Court of Appeals, and that also raised the question . . . that perhaps we need to resolve this issue and just clear up the ambiguity. In a nutshell [OLC] concluded that there is no federal preemption, there is no difference between civil and criminal with respect to whether state laws are preempted. . . . [T]he authority to make such arrest is an inherent authority possessed by the states."*fn20
Later in his presentation, Kobach stated:
"As far as the civil-criminal assumption, there really isn't any legal fiber underneath it in the immigration law, at least. And so in the OLC opinion it came out very clearly, and the Attorney General did announce the summary of what that opinion is . . . in one of his speeches on June of 2002."*fn21
B. The FOIA Requests and this Action

  Plaintiffs submitted two FOIA requests.*fn22 The first request, dated August 21, 2002, stated that recent reports, documents, and events suggested three conflicting positions on the authority of state and local police to enforce civil immigration law.*fn23 The requesters asked the Department "to clarify the situation and share with us the Office of Legal Counsel's most recent legal opinion. . . ."*fn24 The Department responded that it had located two responsive documents but that it was withholding them under Exemption 5 because the documents are protected by the deliberative process privilege.*fn25 One of the OLC opinions was dated March 11, 2002.*fn26 The other, dated April 3, 2002, is apparently the one to which Department officials have referred in public statements.*fn27 Plaintiffs administratively appealed the decision, but the appeal was denied.*fn28

  The second request, dated March 5, 2003, asked for:
"[A]ll records in the offices of the Attorney General, the Deputy Attorney General, and the Associate Attorney General, and all Office of Legal Counsel records, that:
1. constitute the basis for the Attorney General's press conference statement regarding the inherent authority of the states to arrest aliens who have violated the civil provisions of the Immigration Act;*fn29
2. set forth, refer to or discuss the Attorney General's above-referenced statement regarding the authority of the states to enforce the civil provisions of the immigration laws; or
3. communicate to state or local law enforcement agencies the Department of Justice's position on the enforcement of civil provisions of the immigration laws by state or local officials, as announced in the Attorney General's above-referenced statement."*fn30
  On April 14, 2003,*fn31 plaintiffs brought this action, alleging that the Department's response to the first request violated the FOIA's disclosure requirements.*fn32 On April 29, 2003, the plaintiffs submitted an amended complaint that challenged the Department's response to the second request.*fn33 The Department responded to the second FOIA request on July 2 and 3, 2003,*fn34 identifying but withholding twenty-four*fn35 documents in full, releasing seven documents in full, and releasing four documents in part.*fn36 The Department based all of the withholdings on Exemption 5.*fn37 The Department has produced a Vaughn index*fn38 of which the final version contains 28 documents.*fn39 The documents identified in the index, in addition to the two OLC opinions, consist of drafts of a letter, a draft of a policy option paper, drafts of a memorandum, drafts of "talking points," a policy option paper, and email messages.*fn40

  The matter now is before the Court on defendant's motion for summary judgment.

  Discussion

  The major issues are whether the OLC memoranda are protected by the deliberative process privilege; whether, if the memoranda are so protected, the Department waived the privilege with respect to one of the memoranda; whether certain email messages qualify for the deliberative process ...


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